The DOL recently issued an Opinion Letter in response to a question about whether a group of employees’ on-call time was considered hours worked under the FLSA. The employees in this example must:

• be reachable at all times
• abstain from alcohol, and
• get to work within an hour of being contacted.

The employees don’t need to stay on the employers’ premises and are called only on rare occasions.

The DOL’s answer: The on-call time doesn’t have to be paid. Why not?

The key question is whether the employees can still use the time for personal reasons. Personal use of the time might be limited if employees have to stay in one place, need to get to work very quickly after they’re called, or if they’re contacted frequently.

In those cases, the time would need to be paid.

But in this example, an hour is a reasonable response time — employees can go where they want, and the prohibition on alcohol isn’t restrictive enough to put broad limits on how employees use the time.

You can read the entire letter here.

In one recent case, an employee was disciplined several times for various policy violations. She was close to being fired on a few occasions, but managed to convince her supervisor to suspend her instead.

Eventually, she was fired after missing work — without authorization — because of knee problems. She sued the company, claiming the absence should’ve been covered by FMLA.

The company disagreed. Why? Because she wasn’t eligible to take leave. When all of her time was added up, it turned out she only worked 1,248.8 hours in the past 12 months — 1.2 hours shy of what FMLA requires.

The court agreed with the company, which had documented payroll records to support its argument. The woman wasn’t entitled to FMLA leave.

Cite: Pirant v. U.S. Postal Service

The facts:

A group of employees sued, claiming their commutes counted as “hours worked” under the FLSA. Why? The employer required them to carry documents to and from work. The employees said lugging big briefcases around extended their commutes significantly. Some claimed to frequently miss public transportation and said it was a hassle to have to go straight home every day.

The employer said:

How the employees got to the workplace was their own business. They weren’t being asked to work while they were commuting, just to carry files with them for security purposes.

Who won the case?

Answer: The employer.

Why: First, the court agreed that employees could still use the commute time however they wished — i.e., they didn’t have to work while on the way to work. Therefore, the time wasn’t compensable.

Also, even if the employees’ argument was true, the time added to the commutes was considered “de minimis” — that is, too brief to make it practical for the company to track it.

Another lesson: It’s important to note that if employees chose to do work while on the train, the time would’ve been compensable.

Cite: Singh v. City of New York

An employee sued her employer after she was denied FMLA leave because she failed to meet the 1,250-hour requirement.

She claimed she worked more than enough hours. Her calculation included “bonus hours” she was paid for working weekend shifts. For example, if she picked up a Saturday shift, the company gave her 10 extra hours of pay for that week.

The court didn’t buy it. The judge said the “hours worked” only includes time an employee is “required to give” an employer. Extra pay, even if it’s measured in hours, doesn’t make a difference.

What counts?

The FMLA’s 1,250-hour requirement only includes time that counts as “hours worked” under the Fair Labor Standards Act (FLSA) — in other words, only hours in which work is done, that must be paid for and that count toward overtime calculations.

So, for example, the 1,250 hours would not include:

1. paid or unpaid vacation and sick time
2. paid holidays, or
3. previous periods of FMLA leave.

Cite: Mutchler v. Dunlap Memorial Hosp.

To be eligible for FMLA, an employee must have worked for a company for at least 12 months (not necessarily consecutively) and logged 1,250 work hours in the previous year. However, not all hours count toward the 1,250. Here’s an example:

An employee opted to wrk in a “weekender program,” a 12-hour shift on Saturdays and Sundays. For doing so, she received a bonus equivalent to 10 hours’ pay. When she asked to take FMLA leave for a surgical procedure, her employer balked – according to its records, she hadn’t worked the required 1,250 hours.

The woman took the time anyway, and was fired.

She sued, claiming that she would have met the 1,250-hour requirement if her employer had included the 10 hours as actual time worked.

But the judge sided with the company. The bonus hours were an incentive, not time actually worked. So they didn’t count toward the FMLA threshold.

Cite: Mutchler v. Dunlap Memorial Hospital, 2007

Eligibility guidelines

Case in point: The FMLA hourly requirement isn’t exactly straightforward. But here are some guidelines on employee eligibility and FMLA:

The 1,250 work hours are defined by the Fair Labor Standards Act. Paid or unpaid vacation, paid or unpaid sick time, previous FMLA leave or other leave hours don’t count towards the 1,250.

Even if an employee continues to use intermittent leave for an extended period of time, companies can apply the test for 1,250 work hours only once in the FMLA year.

It’s important to remember that an employee needs to satisfy both the 1,250 work-hour and the 12-month eligibility requirement to take FMLA leave. There are several options for determining the 12-month eligibility period:

• The calendar year
• Any fixed 12-month period, like a fiscal year
• The 12-month period that begins with the first day of FMLA or
• A “rolling” 12-month period that’s measured backward from the date the employee uses any FMLA leave.